After two years of research and study, the National Association of Criminal Defense Lawyers (NACDL) has released an important new report– The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It.
The “trial penalty” refers to the significant delta between the sentence offered prior to trial versus the sentence a defendant receives after trial. There are some staggering, but not surprising, statistics in this Report: “in recent years fewer than 3% of federal criminal defendants chose to take advantage of one of the most crucial constitutional rights.” The Report identifies and exposes the underlying causes of the decline of the federal criminal trial.
Here’s an excerpt:
“Criminal defense lawyers have long known that trials are vanishing. This is an unacceptable development, and not just because the art of trying a case is atrophying. The virtual elimination of the option of taking a case to trial has so thoroughly tipped the scales of justice against the accused that the danger of government overreach is ever-present. And on a human level, for the defense attorney there is no more heartwrenching task that explaining to client who very likely may be innocent that they must seriously consider pleading guilty or risk the utter devastation of the remainder of their life with incalculable impacts on family. This Report documents the corrosive effect of the trial penalty on the system of criminal justice. It examines the relationship between the trial penalty and numerous characteristics of modern criminal justice including virtually unfettered prosecutorial charging discretion, mandatory minimum sentencing statutes, and the federal Sentencing Guidelines. The Report highlights specific cases to demonstrate that individuals are being punished simply for holding the government to its burden of proof and, in some cases, that the trial penalty has coerced innocent individuals, later exonerated, to plead guilty for fear of devastating long posttrial sentences.”
Check out the whole thing here: NACDL Trial Penalty Report FINAL